The crisis must be understood as a reflection of a wider fracture in the country’s politics.
There is no sign yet of any resolution to Poland’s increasingly febrile judicial crisis, which (an obvious speculation) may have inspired a gunman to murder six people and injure even more in a mass shooting in Kraków yesterday. The alleged killer has been arrested. Marcin Kierwiński, the Polish interior minister, has said that “everything indicates that the shooter was fascinated by far-right ideology.” Others have disputed that claim. Time will tell. But no one should deny the heroism of the two policemen (say their names), Jakub Kulik and Artur Morański, both seriously injured in the shoot-out that brought the terrorist’s rampage to an end.
In a piece published here before the attack, John Gustavsson looked at the background to the Polish crisis, which must, in my view, be understood as a reflection of a wider fracture in the country’s politics. Gustavsson rightly stressed the role that Brussels has been playing. Meanwhile, I am trying to work my way through an abbreviated (really) description of the legal and constitutional morass that has been building up for over a decade.
My last post concluded (more or less) with the end of Andrzej Rzepliński’s nine-year term as president of the Constitutional Tribunal, a court that decides whether laws passed by the Parliament of Poland pass constitutional muster, in December 2016. Rzepliński had been aligned with the “pro-Brussels” (to use a shorthand) center-right Civic Platform (PO) government that had been voted out of office the previous year. He had been fighting a rearguard action against the campaign by the new Law and Justice (PiS) party government (nationalist, conservative, more oriented toward Washington than Brussels) to change the tribunal’s composition.
Rzepliński’s successor, Julia Przyłębska, was picked by Poland’s then-President Andrzej Duda. Duda is closely aligned with (although not a member of) PiS. Przyłębska herself is, despite her protestations to the contrary, also aligned with PiS, although again not a party member. The way in which she was appointed was another giant step toward the current crisis.
Under the Polish constitution, the country’s president appoints the tribunal’s president from among candidates proposed by the General Assembly of its judges. That’s (sort of) what happened with Julia Przyłębska, but the procedure used to appoint her also reflected the impact of freshly passed and unusually rushed legislation, which among changes had allowed three pro-PiS “November” judges to be appointed instead of the original pro-PO nominees (for more on that trio, please see the earlier post). One judge resigned in protest, most abstained, and Przyłębska was picked as the tribunal’s president by Duda in December 2016.
This was part of a wider campaign by the PiS government to clip the tribunal’s wings, for reasons that can be interpreted as a power grab, an attempt to clean up the lingering legacy of the communist regime, or a bit of both. The tactics used were purportedly legal and therefore subject to sometimes successful legal challenges and, in other instances, to negative rulings — which have left the legitimacy of the tribunal’s operations in, legally speaking, an unsettling limbo. This has played a major part in the current confrontation.
Up until now, however, the wing-clipping has had a real effect, which has only increased over time. As the years passed, any new vacancies on the tribunal were, as the constitution had always provided, filled by the parliament. The PiS government, which had been reelected in 2019 with an increased majority, picked only judges aligned with that party, just as PO had done with PO-aligned judges during its time in office. By the time that PiS was voted out of office in 2023, all the tribunal’s judges were in the PiS camp. The tribunal was issuing far fewer rulings, and a backlog of cases was building up.
In 2022, a debate had broken out over when Przyłębska’s stint as the tribunal’s president should end. According to a new PiS law, the president’s term was reduced from nine (effectively) to six years, as, it was claimed, a tidying-up exercise. If the law was retrospective, it was not drafted in that way. Przyłębska insisted she stay at her post for nine years and, backed by PiS, duly did, although six of the tribunal’s judges disapproved. This split further gummed up its working, and it goes some way to refuting any idea that PiS is some kind of monolith.
Giving the lie to some of the more overheated claims about a dying Polish democracy, PiS was, as mentioned above, defeated in parliamentary elections in October 2023. The victors were a coalition headed by PO. Donald Tusk, now back from Brussels (where he had been president of the EU Council), returned to the premiership. Another of the characters who would play a major role in the current battle was now in place.
Tusk’s government refused to recognize the validity of Przyłębska’s presidency and, indeed, the basis on which the tribunal had been organized since 2015. Nevertheless, in practice, there was little it could do to force her out. She only resigned in late 2024, a few days before the end of her (nine-year) term, in order to assume a role by which she could oversee the appointment of Bogdan Święczkowski, PiS’s favored choice, as her successor. The PiS-adjacent Duda, who was still Poland’s president, approved Święczkowski. Another key figure in the current drama was now on the stage.
The battle over the Constitutional Tribunal was mirrored by moves taken by PiS that were designed to change Poland’s Supreme Court. After an initial, highly aggressive gambit was foiled by widespread protest and grumbling from Brussels, PiS chose as its weapon of choice a reduction in the mandatory retirement ages (with room for politically determined exceptions) for all judges and prosecutors.
Some 27 judges were forced out. (Poland’s Supreme Court has many more members than the U.S. Court; it functions like a senior appellate court with divisions focused on different areas of the law.) The European Court if Justice then intervened. It found that, to the extent the new lower retirement ages operated retroactively (to sitting judges), they were, along with a number of other changes, incompatible with EU law. The “retired” judges were therefore able to return to work.
There were other PiS efforts to increase political control over the judiciary. The most contentious was a restructuring of the KRS, a body charged with protecting the independence of the judiciary and nominating new judges for appointment by the president. Hitherto, the majority of its members had been judges elected by the judiciary. Under a new law, they were to be chosen by the parliament. Critics of this change now talk about the neo-KRS and refer to the judges it has appointed — probably about a third of today’s total — as “neo-judges.”
These (and other measures taken by PiS) were also faulted by the European Court of Justice: part of the involvement of the EU and, to a lesser degree, the Council of Europe, in the fight over Poland’s judiciary. This, its consequences, and the issues it raises will be the subjects of my next post on this topic.
But, before turning to that, I should note that in 2025, Karol Nawrocki was elected as Poland’s new president. Nawrocki is aligned with PiS and, not least because of his veto powers, his narrow victory came as an unwelcome surprise to the PO-led government. It demonstrated that the national conservative bloc was still a power to be reckoned with, and it ensured that a clean, quick resolution to the judicial crisis would prove elusive. And this has proved to be the case.